from the public-domain-fail dept

We've discussed recently some questions about the federal court's PACER system, and noted that the courts seem to be profiting nicely from PACER, even as it's supposed to be about improving access to public domain court rulings, not about money for the court system. Yet, at the same time they're raising rates, and going beyond the mandate that created PACER by using the profits to fund other projects. Even worse, we noted that some courts seemed to be taking an antagonistic view towards efforts like RECAP, which was put together by Harlan Yu, Tim Lee and others at Princeton to help take public domain documents out of PACER and make them available to the public.

It seems like we're hearing about more and more attempts by the courts to scare people away from RECAP. Lawyer Michael Barclay sent over the following text he saw when he logged into the PACER system for the District of Massachusetts federal court, which goes so far as to tell people who are accessing PACER on a "fee exempt" account that they're forbidden to use RECAP:

NOTICE FOR PACER FEE-EXEMPT USERS
The court would like to remind fee-exempt PACER users of the terms of the exemption and of potential issues associated with a new software application called RECAP. It was designed by a group from Princeton University to enable the sharing of court documents on the Internet. Once a user loads RECAP, documents that he or she subsequently accesses via PACER are automatically sent to a public Internet repository. Other RECAP/PACER users are then able to see whether documents are available from the Internet repository. A fee exemption applies only for limited purposes. Any transfer of data obtained as the result of a fee exemption is prohibited unless expressly authorized by the court. Therefore, fee exempt PACER users must refrain from the use of RECAP. The prohibition on transfer of information received without fee is not intended to bar a quote or reference to information received as a result of a fee exemption in a scholarly or other similar work.

NOTICE FOR CM/ECF FILERS
The court would like to make CM/ECF filers aware of certain security concerns relating to a software application or .plug-in. called RECAP, which was designed by a group from Princeton University to enable the sharing of court documents on the Internet. Once a user loads RECAP, documents that he or she subsequently accesses via PACER are automatically sent to a public Internet repository. Other RECAP/PACER users are then able to see whether documents are available from the Internet repository. RECAP captures District and Bankruptcy Court documents, but has not yet incorporated Appellate Court functionality. At this time, RECAP does not appear to provide users with access to restricted or sealed documents. Please be aware that RECAP is "open-source" software, which can be freely obtained by anyone with Internet access and modified for benign or malicious purposes, such as facilitating unauthorized access to restricted or sealed documents. Accordingly, CM/ECF filers are reminded to be diligent about their computer security practices to ensure that documents are not inadvertently shared or compromised. The court and the Administrative Office of the U.S. Courts will continue to analyze the implications of RECAP or related-software and advise you of any ongoing or further concerns.

That part where they say that fee exempt folks are barred from using RECAP had me scratching my head. Could the courts legally do this? According to the PACER FAQ:

A court may, for good cause, exempt persons or classes of persons from the electronic public access fees, in order to avoid unreasonable burdens and to promote public access to such information.

Um. If it is supposed "to promote public access to such information," shouldn't they be encouraging the use of RECAP for fee exempt folks? In digging around, I also found the identical notice to what's on the D.Ma. site -- and while there's no date on it, on the listing of announcements it's a few below March of 2010 -- so this particular statement may actually be a few years old. Either way, it seems troubling that PACER is trying to restrict the use of RECAP and claiming that certain users are forbidden from using it. I don't see how they have the right to do that. Along those lines, after being pressed on the subject back in 2009, the court system stated that the federal court system is fine with RECAP, so I'm a bit confused (and troubled) by the conflicting messages.

Is the federal court system really trying to tell people they can stop them from redistributing public domain info?

from the the-public-domain-is-expensive dept

The Federal Court's PACER system is really quite misguided. It's the system that the federal courts use to distribute judicial records (court filings, rulings, etc.), but rather than making that info available to the public, it's basically locked up behind a paywall, and it costs people 8 cents per page to download documents. Well, it did cost 8 cents per page. They've just announced that they're jacking up the fees to 10 cents per page, and that can add up pretty quickly when accessing a lot of court documents or some rather long filings or rulings.

While Harlan Yu and Tim Lee helped create RECAP to free up court documents, and that has helped make some of this material more widely available, it's still limited. And, in fact, some courts have expressed concerns about RECAP and told lawyers not to use it. And even though the official policy of the US courts is that they're fine with RECAP, it appears not everyone in the court system agrees. EFF lawyer Michael Barclay recently alerted me to the fact that the PACER system for the Western District of NY has a warning on its query page about RECAP, saying:

The court would like to make CM/ECF filers aware of certain security concerns relating to a
software application or .plug-in. called RECAP, which was designed by a group from Princeton
University to enable the sharing of court documents on the Internet.

Once a user loads RECAP, documents that he or she subsequently accesses via PACER are
automatically sent to a public Internet repository. Other RECAP/PACER users are then able to
see whether documents are available from the Internet repository. RECAP captures District and
Bankruptcy Court documents, but has not yet incorporated Appellate Court functionality. At this
time, RECAP does not appear to provide users with access to restricted or sealed documents.
Please be aware that RECAP is "open-source" software, which can be freely obtained by anyone
with Internet access and modified for benign or malicious purposes, such as facilitating
unauthorized access to restricted or sealed documents. Accordingly, CM/ECF filers are
reminded to be diligent about their computer security practices to ensure that documents are not
inadvertently shared or compromised.

The court and the Administrative Office of the U.S. Courts will continue to analyze the
implications of RECAP or related-software and advise you of any ongoing or further concerns.

Of course, with this price hike, one wonders if the courts are really concerned about "security" or if they're concerned about losing out on a big chunk of cash that comes into the courts thanks to PACER. Apparently, that cash is being used for all sorts of things, way outside of what's allowed. The law that authorizes PACER to charge, makes it clear that it can only charge "reasonable fees" and then only to the extent necessary to fund the working of the system:

The Judicial Conference may, only to the extent necessary, prescribe reasonable fees, pursuant to sections 1913, 1914, 1926, 1930, and 1932 of title 28, United States Code, for collection by the courts under those sections for access to information available through automatic data processing equipment.

And yet, reports have shown that PACER already collects a lot more money than is needed to run the system. And this price hike will only increase that. And while some of that money is going to fund additional technology in the courtroom, it's not clear that this is a legal or even best use of funds.

One example is a courtroom renovation one judge described at a 2010 conference. He said that as a result of PACER fees, "every juror has their own flatscreen monitors," and there are also monitors for members of the public to see. His courtroom also got the latest audio technology. "We just put in new audio so that peopleóI'd never heard of this beforeóbut it actually embeds the speakers inside of the benches in the back of the courtroom and inside counsel tables so that the wood benches actually perform as amplifiers," the judge said.

Not that we're against better technology in court, but it's not clear this is the best use of funds, when collecting less money but making the information more widely available might better serve the public interest.

And, really, you have to wonder why the court system needs PACER in the first place. In this age of easy and free delivery of information, why can't the courts release that content for free, and charge people just for paper printouts? And, as Tim Lee's article points out, there seem to be much better ways to handle such a distribution of content:

For example, there isn't just one PACER website for the whole country. Instead, there are actually around 200 separate PACER websites, each serving a different judicial district. Consolidating those 200 servers into a single website hosted from a modern data center would improve the user experience and dramatically reduce IT costs.

Indeed, Yu argued that the very concept of charging for copies of public records is misguided. He suggested that instead of jacking up fees in order to fund the development of a more elaborate PACER site, the courts should publish their raw data and allow private parties, from Google to the Internet Archive, to build websites using that data.

"Congress needs to consider funding PACER out of general appropriations," Yu told Ars. "It's really shutting people out from being able to learn the laws that they need to abide by in our society." Of course, if PACER were run in a cost-effective matter, and without a paywall, it would cost a lot less than $100 million.

from the an-exploit? dept

A bunch of folks have sent over the incredible story of how the FBI investigated well-known programmer Aaron Swartz, after discovering that he had installed a perl script on a computer at the 7th U.S. Circuit Court of Appeals library in Chicago, to cycle through PACER documents and upload them to an Amazon S3 account. Basically (as we've discussed in the past), court documents -- which are in the public domain -- are mostly locked up in the gov't's PACER system, which costs $0.08/page. However, since the documents are public domain, once you get them, you're free to do what you want with them. The Government Printing Office started an experiment last year, offering free access to PACER in certain libraries. Swartz just went to one and then installed his script to cycle through and upload those documents. The library's IT staff eventually noticed the issue (it took a few weeks) and alerted the FBI who began an investigation of Aaron, after Amazon handed over his info. While you can sorta understand why the FBI might look into why someone had installed a program on a court library computer, once it became clear that it was only accessing public domain documents, it seems pretty silly to have continued onward -- including driving by his home and considering a stakeout.

from the but-who-sent-out-those-letters? dept

Earlier this week, we wrote about how some Federal Courts were sending out misleading emails warning people about RECAP, the Firefox extension that would help make public domain PACER documents freely available. The warnings from the courts were scare tactics... but Paul Alan Levy spoke with Michel Ishakian, the Deputy Chief for IT Policy and Budget at the Administrative Office of the United States courts, who is apparently saying that the US courts are now perfectly fine with RECAP. That doesn't quite explain the scare tactic emails that have been sent out, but it's nice to know that (hopefully) the courts are coming around to see the value of RECAP. In fact, Ishakian apprently had a call with Ed Felten, who oversaw the RECAP project, and apparently everyone's on the same page. That's definitely good news.

from the and-that's-how-it-goes dept

We've been excited to see what would happen with the RECAP Firefox extension, which is being used to help free up public domain court documents that have been locked up behind the PACER paywall. However, there were also questions about how the folks who run and/or benefit from PACER would react. We now have at least part of the answer: bogus scare tactics. Paul Alan Levy alerts us to the fact that the Federal Court system, which profits from PACER, has started sending out scare notices to try to keep lawyers from using RECAP:

The court would like to make CM/ECF filers aware of certain security concerns relating to a software application or "plug-in" called RECAP, which was designed to enable the sharing of court documents on the Internet.

Once a user loads RECAP, documents that he or she subsequently accesses via PACER are automatically sent to a public Internet repository. Other RECAP/PACER users are then able to see whether documents are available from the Internet repository. At this time, RECAP does not appear to provide users with access to restricted or sealed documents.

Please be aware that RECAP is "open-source" software, which means it can be freely obtained by anyone with Internet access and could possibly be modified for benign or malicious purposes. This raises the possibility that the software could be used for facilitating unauthorized access to restricted or sealed documents. Accordingly, CM/ECF filers are reminded to be diligent about their computer security and document redaction practices to ensure that documents and sensitive information are not inadvertently shared or compromised.

The court and the Administrative Office of the U.S. Courts will continue to analyze the implications of RECAP or related-software and advise you of any ongoing or further concerns.

I especially like the "scare quotes" around "open-source." Of course, I'm not quite sure why the fact that the extension is open source makes it any more vulnerable to being "modified for benign or malicious purposes." Either way, looks like the Federal Courts don't like competition eating away at their PACER profits.

from the is-this-good-or-bad dept

Last week, we wrote about the launch of RECAP, a neat little tool for making sure that more public domain court rulings are actually accessible to the public (what a concept). Apparently, the tool is already useful. Thomas O'Toole points us to the news of someone who used RECAP to point to rulings that were vacated and then (oddly) ordered to be removed from various databases. All of this was a part of a settlement agreement. Rulings get vacated all the time, but having the judge order the various databases that hold rulings to delete them seems a bit extreme. However, thanks to RECAP it seems that the original rulings are still available. Yet another reminder that you can't make things disappear online.

from the about-time dept

There's been a push by people both inside and outside the government to get public court documents out to the public. As it stands now, most court documents can be found via PACER, the court system's own online service, which charges $0.08 per page. PACER notes that it's charging for the documents to cover its own costs of managing its system, but this still bothers many who don't like the fact that important public domain case law is so costly. There are some private services, like Justia trying to fill the void, and Carl Malamud is pushing hard to get the government to put public documents up for the public to read.

Now there's a new service that has an interesting tactic to try to help bring these documents to the public domain. Ed Felten's Center for Information Technology Policy at Princeton University is announcing a service and a Firefox extension called RECAP (it's PACER backwards), with the tagline: "turning PACER around." It's a bit ingenious. Basically, if you're a PACER user, you install the Firefox extension, and any documents you access via your PACER account automatically get uploaded to a public archive (hosted by the Internet Archive folks). If the document has already been uploaded, the extension alerts you to that fact in PACER, so you can access the open archived one.

While the folks at PACER might not like this, it's all perfectly legal. The documents are public domain, and people can do whatever they want with the documents once they have them. Creating a public archive is one option -- and a rather useful one at that. The real question is how many PACER users will actually participate in the program in order to make this a truly useful resource. At launch time, this public database has already been seeded with about a million documents, but the question is how quickly will it grow? No matter what, conceptually, this is a fantastic idea that hopefully will help to open up public domain court information that has been locked behind PACER's paywalls for too long.